UC Davis Can’t ‘SLAPP’ Around a Fired Doctor

The University of California, Davis Medical Center can’t escape facing wrongful termination and retaliation claims by a former resident anesthesiologist by claiming its firing of the doctor was constitutionally protected free speech.

The California Third District Court of Appeal said Friday Dr. Un Hui Nam must be given her day in court.

The UC Regents sought dismissal of her case by using a law intended to protect the news media and political activists from harassing lawsuits, known as SLAPP suits, or Strategic Lawsuits Against Public Participation. California’s Anti-SLAPP law allows news organizations, or dissidents of all kinds, to file motions to quash the harassing lawsuits.

The core of a SLAPP suit is one filed by the economically powerful to dissuade its opponents from exercising the constitutional right to free speech or petition. The object of the SLAPP is not to win but to exact enough financial pain to induce silence. An Anti-SLAPP motion allows courts to toss out the SLAPP lawsuit immediately.

In this case, the Regents argued Nam’s wrongful termination lawsuit was really a SLAPP action intended to thwart UC Davis’ First Amendment rights, namely to conduct employment investigations and fire her.

The appeals court strongly disagreed.

“The California anti-SLAPP statute was intended to counter the ‘disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances,” wrote Justice Vance Raye.

“It has been suggested that ‘the cure has become the disease – SLAPP motions are now just the latest form of abusive litigation.’ And the disease would become fatal for most harassment, discrimination, and retaliation actions against public employers if we were to accept the Regents of California’s misguided reading of the anti-SLAPP law,” Raye wrote.

Nam’s Claim

Nam began as a resident at UC Davis in 2009 and after receiving praise in her first review sent an email asking clarification if residents were allowed to intubate patients.  She said she was “completely flabbergasted” that anesthesia residents would not be allowed to intubate and must wait for an on-call team in an emergency.

She copied all other residents and was told to expect retaliation from the medical center.  The school denied it retaliated but within three years Nam was dismissed after a series of complaints, warnings and investigations over allegedly wearing improper clothes or that she “ate and flossed on the job.”

In 2011, Nam requested a formal hearing to contest her firing but never received it. In 2013, she filed her lawsuit claiming retaliation, discrimination, sexual harassment and wrongful termination.

Raye concluded that the panel questioned whether Nam’s lawsuit for harassment and retaliation could even be characterized as a SLAPP.

“It is hard to imagine that a resident’s complaint alleging retaliatory conduct was designed to, or could, stifle the University from investigating and disciplining doctors who endanger public health and safety,” Raye wrote.

The underlying lawsuit by Nam “may or may not have merit” but that can be tested in later summary judgment motions, “but it is quite a stretch to consider it a SLAPP merely because a public university commences an investigation,” he said.

The case goes back to the trial court in Sacramento.

Case: Nam v. Regents of University of California, No. C074796

Related: “Getting Slapped Around,” California Lawyer Magazine, from 2014, my in-depth take on the potential abuse of Anti-SLAPP motions.

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